Hesse v. Hemberger

• Decision Date: 15 December 1896
• Parties: HESSE v. HEMBERGER et al.
• Court: Tennessee Supreme Court

Page 1063

39 S.W. 1063

HESSE v. HEMBERGER et al.

Court of Chancery Appeals of Tennessee.

December 15, 1896.

Appeal from chancery court, Davidson county; Thomas H. Malone, Chancellor.

Bill by Fred Hesse, administrator of Kate Scheurich, deceased, against Theodor Hemberger, administrator of Lorenz Scheurich, deceased, and others. From a decree dismissing the bill, complainant appeals. Affirmed.

John Ruhm & Son, for appellant. Hamilton Parks, for appellees.

WILSON, J.

The bill in this cause was filed May 30, 1895, by the complainant, as administrator of Kate Scheurich, against the defendant, as administrator of Lorenz Scheurich, and the sureties on his bond. The object of the bill was to hold the defendant and his sureties liable for $1,800 of United States bonds, which it was averred belonged to the estate of Kate Scheurich, and which the defendant had wrongfully appropriated to his own use in his administration of the estate of Lorenz Scheurich. The contention of the bill is that Lorenz Scheurich died, leaving surviving his wife, Kate Scheurich; that upon his death these bonds, with his other personal property, passed to his surviving wife; that she died soon after her husband's death; that, as administrator of Lorenz Scheurich, the defendant had obtained possession of these bonds, and had failed to report them as part of the assets of the estate; and that the complainant, as her administrator, had the right, in a court of equity, to hold the defendant and his sureties to account therefor for the benefit of her estate and those entitled to it. The defenses, in brief, were, that the defendant was the nephew of Lorenz Scheurich; that the said Lorenz Scheurich promised him, if he would live with him, he would will him all his property; that he died suddenly, without making a will; that his wife, the said Kate Scheurich, after the death of her husband, knowing the wish of her husband that the defendant, his and her nephew, should have his property, gave the bonds and money the husband had on hand to him; and that, under the facts, she had the right to make the gift to him; and that no administrator of the husband was necessary, through whom to pass the gift, to perfect it. The controverted question of fact in the case is whether the wife, Kate Scheurich, gave the bonds and money on hand to defendant; and the controverted question of law is whether she could make the gift, no administrator of her husband having been appointed at the time it is alleged to have been made, and, in fact, no administrator having been appointed of his estate until after the death of his wife. The chancellor held, under the proof, that Mrs. Kate Scheurich gave the bonds and money to the defendant, and that, in the absence of the claims of creditors, no administrator of the estate of Lorenz Scheurich was necessary to perfect the gift, and dismissed the bill, with costs. From this decree, complainant prayed and obtained an appeal to the supreme court, and has assigned errors.

The errors assigned may properly be considered under two heads: First, that the evidence fails to establish a gift and delivery of the bonds by Mrs. Kate Scheurich to the defendant, in the clear and satisfactory manner required by law; second, that, conceding she made the gift and delivered the bonds, she had no title to the bonds, and hence could make no gift that would remove them or change their character, as assets of the estate of her husband.

The essential facts appearing in the record, which we deem it necessary to state in order to fully present the issues raised by the pleadings and evidence, are these: Lorenz Scheurich and his wife, Kate, as she was called (her proper Christian name being Johanna Christiana Scheurich), were an old German couple, living in Nashville. They had no children. He had acquired some real estate and some personal property, and, among the latter, $1,800 of United States bonds. He died suddenly, January 15, 1895, intestate, without issue, but leaving his wife surviving him. She was old and in feeble health, and died intestate, without issue, February 7, 1895. The old lady, while in feeble health when her husband died, was able to be up and about her house until a few days before her death. The defendant Hemberger was a nephew of the husband, and lived with the family. The most friendly and affectionate relations existed between him and his uncle and aunt. The evidence is plain and undisputed that the uncle invited the nephew to come to Nashville, and promised him, if he would stay and live with him and his wife until they died, he would give him or will him all of his property. He died suddenly, as before stated. His wife knew of the wish of her husband, or of his promise that the nephew should have his property. After the death of the husband, and before the death of the wife Col. Chamberlain, a lawyer of Nashville, was called in to advise. He visited the house, and, in the presence of the nephew and wife, inventoried the personal effects of Lorenz Scheurich. Among his properties were these bonds. He advised the wife that she was entitled to administer on the estate of her husband, and that, as widow, the personal estate belonged to her, after the payment of all debts, but that, as she was old and feeble, it would be best for the nephew to qualify as administrator. Col. Chamberlain, it seems, kept this inventory made by him, so that defendant Hemberger could call and get it when he needed it, presumably after his qualification as administrator of the estate of his uncle. He did not qualify until after the death of the wife, and, when he did, his bond was fixed at $1,000. Afterwards, upon petition of the heirs of the widow, filed in the county court, he was ordered to increase his bond, or give an additional bond in the penalty of $4,000, that court holding that the proof showed that the personal estate of Lorenz Scheurich was of the value of $2,000. This additional bond was given. He filed an inventory, in which he stated that no assets of the intestate came into his hands. This bill was filed, averring that this inventory filed by him was false; that $1,800 of bonds had come into his hands, and some $100 in money; and that he had illegally converted it to his own use. The bill is filed in behalf of the heirs and distributees of the wife, Kate Scheurich, by her administrator. The defense is a gift by the wife, Kate Scheurich, to the defendant. Defendant Hemberger paid the debts and personal expenses of both the husband and wife, the debts consisting of the doctor's bills and the hire of some servants. The bill does not aver that there were any creditors of the estate of either the husband or wife. It appears, however, in the evidence, that the succession tax had not been paid, and that there were unpaid taxes on the real estate of old man Scheurich.

As a matter of law, the personal estate of Lorenz Scheurich, upon his death intestate and without issue, and in the absence of the valid claims of creditors, belonged to his wife. That she had the equitable title thereto, subject to the claims of creditors, is not disputed.

As to the question of fact: Did Mrs. Scheurich give and deliver these bonds to defendant Hemberger? The effort is to establish a gift inter vivos. It is insisted on behalf of the appellant that, in order to support such a gift, it must appear absolutely and beyond doubt that the donor intended to part with his dominion over the property. The cases of Sheegog v. Perkins, 4 Baxt. 273, and Hester v. Hester, 13 Lea, 189, are cited. In the former case, Judge Sneed, in delivering the opinion of the court, the case being a contention on the part of the wife of a gift inter vivos by her husband, or a parol trust declared by him, in her favor, says: "But the question, in any event, resolves itself into one of intention. In order to make this gift complete, it must appear absolutely and beyond a doubt that the donor intended to part with his dominion over the property. If the intention to give or to declare the trust be not clearly made out, it cannot be supported; and if, upon the facts, the matter be enveloped in doubt, that doubt must prevail against the hypothesis of a gift; and this is especially so where creditors are to be obstructed, embarrassed, or postponed in the collection of their debts. The testimony in this case is conflicting. A portion of it would seem to sustain the claim of the complainant, while there is much disinterested testimony which clearly negatives the idea of a gift." Judge Cooper, speaking for the court in Hester v. Hester, 13 Lea, 189, a case wherein a man of great weakness of body and mind had, by deed of gift, conveyed a lot in Memphis to his wife, said: "The rules of equity in such cases throw upon a person claiming by gift the burden of proof to some extent, not readily determined by definite lines, to show that the act was free, and not procured by improper influence; and a degree of weakness far below that which would justify a commission of lunacy, coupled with other circumstances, to show that the weakness had been taken advantage of, would be sufficient to set aside the deed. The question is one of fact, and all that can ordinarily be asked of a beneficiary is to show that he had no voice in the transaction, or, if he had, that his action was free from fault, or that the donor had the benefit of a full consultation with some disinterested third person." 2 White & T. Lead. Cas. Eq. 1275. The authorities are practically unanimous that the gift must be perfect,—that is, nothing essential must be left undone by the donor; and the gift must be accepted by the donee. The delivery of the property, the subject of the gift, to the donee, or to a bailee for him, is essential to the validity of the gift, and the owner must part with his dominion and control of the property before the gift can take effect. In other words, there must be a distinct and unequivocal change of possession,...